Final Report of Mediate BC’s BC Family Justice Unbundled Legal Services Project Now Available

As many of you know, unbundled legal services help to fill the gap for people who do not qualify for legal aid and cannot afford full representation. Law Societies in many jurisdictions have formally approved unbundling (also called limited scope legal services) but few lawyers were offering these services to the public. The purpose of Mediate BC’s BC Family Justice Unbundled Legal Services Project (the “Project”) was to find ways to encourage more lawyers to offer these services.

After an 18 month process, I’m pleased to advise that the Project’s final report and the report of the independent evaluation of the Project are now available.

The Project has been highlighted in various Slaw posts during that period including here and Nate Russell’s excellent post here. While the final report details the Project’s activities, observations and deliverables during its 18 month life, the unbundling movement is far from over. In fact, the report acknowledges that, at most, it attempted to nudge an existing movement and that much more still needs to be done.

Unbundling is not the silver bullet for access to justice. However, it is an important piece of the access to justice puzzle. The Project used the term “unbundling” to include “legal coaching” and has collaborated the National Self-represented Litigants Project and Nikki Gershbain who are working to promote that important approach. We also shared information with JP Boyd’s Alberta Limited Legal Services Project.

The Project’s research and engagement phase identified both concerns/barriers and successful practices which led to the creation, in collaboration with others, of four major deliverables:

The Toolkit is open and available to anyone. While it focuses on family matters, the contents were designed to be adaptable to other practice areas. Tools address the major concerns expressed by lawyers: claims and complaints to the Law Society and reputational concerns.

Many lawyers are already providing unbundled legal services, although they may call them something different and, due to their concerns, may refrain from promoting or advertising those services. Unbundled legal services can come in many different forms and in a variety of practice areas. When he first learned about unbundling, one lawyer from the Okanagan was excited to announce that he was providing unbundled services to small claims litigants using a flat fee. We also encountered a number of BC lawyers who are focusing their practices on unbundling in creative and satisfying ways. We hope that the Project results will provide more lawyers with the incentive and reassurance to examine their own practices and consider how they could offer unbundled services to existing or new clients.

The report was also drafted with other change-makers in mind. It includes observations, principles and learnings that were designed to assist those who are supporting unbundling and related initiatives in other jurisdictions.

The Project evolved over time (as is expected when dealing in a complex environment) and focused on some key principles including:

  • Acknowledging that the Project attempted to intervene in a complex (justice) system and that change-making in that environment requires a different approach;
  • Embracing a “learn as you go” approach;
  • Gaining inspiration from other jurisdictions (which were also encouraging unbundling);
  • Collaborating with a wide variety of stakeholders including the public;

The report concludes with observations about unbundling and the change process, a vision for the future and some critical next steps. It urges stakeholders (in particular, the Law Society of BC, CBA BC Branch, Courthouse Libraries of BC and Access to Justice BC) to assume a joint stewardship role to continue to nurture the unbundling movement. The CBABC has already confirmed creation of a new province-wide Unbundled Legal Services section and A2JBC is in the process of forming an Unbundling Working Group. We are optimistic that the momentum created for unbundling will continue.

The Project evaluation report confirms the growing interest of lawyers in unbundled services and tangible support from the BC judiciary (which is encouraging). It also confirms perceived barriers to lawyer involvement plus strategies to address them, all of which were taken into account in designing both the Toolkits and Roster. The evaluation report also points out areas needing further research (including more robust input from clients who have used unbundled legal services). The report concludes with:

Across the board, there was concurrence that there is a crisis of legal affordability and that unbundled legal services are needed as one way to address a lack of access to justice and lack of access to legal services.

It is still early days in this journey and we hope that evaluation activities will continue as unbundling expands.

A key point emerging from both reports is the urgent need for a focused effort to raise public awareness of unbundling. Now that the profession is stepping forward to offer these services we need to let the public know they are available and how to find those who offer them.

We are extremely grateful to the Law Society of BC, the Law Foundation of BC, Courthouse Libraries of BC, CBABC and Mediate BC for their ongoing support (financial and otherwise) of this initiative and to the many other stakeholders who have stepped up to champion unbundling.

Please take a few moments to review the final report and evaluation report and consider how unbundling is or could be a more prominent part of your practice. While my official role in the Project has concluded, I would be happy to receive your thoughts and ideas and to support this important initiative as it moves forward.

[Editor’s Note: This post first appeared on Slaw: Canada’s Online Legal Magazine. Mediate BC is grateful to have been allowed to re-publish Kari Boyle’s post here. See all of Mediate BC’s posts on this project and unbundling.]

Kari D. Boyle
Kari D. Boyle

Kari D. Boyle is the BC Family Unbundling Roster Project Manager. She is also the Coordinator of the BC Family Justice Innovation Lab, a Knowledge Engineer with the BC Civil Resolution Tribunal, Board member of the Courthouse Library Society of BC and member of Access to Justice BC. Kari served as Mediate BC’s Executive Director and then Director of Strategic Initiatives for ten years. She enjoys using her legal, mediation and leadership experience to collaborate with others to improve BC citizens’ access to justice.

Photo by Mari Helin-Tuominen on Unsplash

Supporting Families Through Change: Unbundled Legal Services Project Part 6

In part 5 of this series on the unbundled legal services surveys, we summarized the experience of family members with financial arrangements for unbundled services, their satisfaction with those services and their suggestions for change. In this final post in this series, we explore the survey responses about unbundling from family mediators. The formal summary of survey results can be found here.

Demographics

We received 17 responses in total. Not all respondents answered all questions. We were grateful for the support of Family Justice Services and more than half of respondents were family justice counsellors. 93% of the respondents were women. Ages ranged from 31 – 70 with an average age of approximately 52. 80% reported living in a city, 13% in a town and 7% in a rural area. While the number of respondents was relatively low, the results they were provided were rich and helpful.

The Importance of Access to Legal Advice

Mediate BC’s 2015 Business Survey (of Roster mediators) revealed that 55% of family mediations involved at least one participant who was not represented by counsel. Respondents to this survey reported that almost 100% of their mediation clients attended mediation on their own (without legal representation at the table) and that 75% were not represented at all by counsel (again, this may be influenced by the high proportion of FJC respondents). These results are slightly higher than the number of self-represented family litigants in either BC Provincial Court [note 1] or BC Supreme Court [note 2].

We asked mediators to describe how important it was for parties to have access to legal advice / legal services for various mediation-related steps. The results are shown in this chart and demonstrate strong support:

When are legal services extremely important

The responding mediators prioritized the need for their clients to access legal advice/services at the outset and then at the end of the mediation process. Few emphasized the need for representation during the mediation sessions themselves. A moderate number felt it was important for families to be able to access lawyers for legal advice or coaching as the mediation process continued.

This may be a result, in part, of the large number of family justice counsellors who participated in the survey. They mediate with parents about guardianship, parenting arrangements, contact and support and very few are represented by counsel. Two FJCs commented:

People are referred for legal advice throughout (the) process, some access it and some do not.

It is extremely important for parties to have access to legal advice, always. My experience is that if the principles of mediation are applied along with a strong ethical approach, most parties decline legal advice.

We suspect that if more private mediators had responded they would have emphasized the need for legal advice throughout, particularly for issues of property division and spousal support.

We asked what type of person most needs legal services to support them in mediation. The results in rough order of priority were:

  • Those who have experienced domestic violence or some other form of significant power imbalance
  • Those who have spousal support issues or property division issues
  • All people need access to legal advice/services
  • Those without knowledge of the system and law (knowledge gives empowerment)
  • Those with mental health or capacity issues
  • The “working poor”

Types and Frequency of Unbundled Legal Services

There are a number of ways that family members can access legal advice and representation including services provided by duty counsel or Family LawLine (available for free to eligible families and very supportive of families using family justice counsellors), CBC Lawyer Referral, Access Pro Bono clinics, etc. Unbundling is just one approach for the delivery of affordable legal services and we know from the public survey responses that family members have difficulty finding lawyers who are willing to provide services in this way. Some of the mediators may have included duty counsel and Family LawLine as examples of unbundled legal services.

We then asked how the mediators thought access to unbundled legal services affected their ability to participate effectively in mediation.  The majority of the respondents identified the benefits of reassurance to the client in their decision-making, particularly before signing an agreement.

All respondents confirmed that they always or sometimes either recommend that unrepresented parties in their mediations seek unbundled legal services or refer parties to these services. However, 85% of respondents said that there were insufficient unbundled services available for parties in their family mediations. They noted with appreciation the support of duty counsel and the Family LawLine but lamented that these services are limited in scope (they do not deal with property division), not all family members meet financial eligibility requirements, there are often wait lists and these services are not available in all communities.

Independent Legal Advice on Agreements

One of the most well-known forms of unbundled services is independent legal advice (ILA) on a memorandum of understanding (MOU) or agreement created during mediation. 87% of respondents to this survey reported that they draft binding agreements for parties to their mediations.  Note that FJCs can prepare binding agreements for matters within their mandate. This is not a service provided by LSS duty counsel or Family LawLine. Only 50% of respondents said that there were sufficient lawyers willing to provide ILA in their communities.

They noted that parties frequently decide NOT to seek ILA on an MOU or agreement coming out of mediation. Reasons can include that the parties:

  • Do not believe it is necessary
    • particularly if the issues are all child-related
    • the agreement is very basic and uncomplicated
    • there is a high level of trust between the parties
  • Just want to get it over with and ILA take too much time
  • Believe ILA is too costly
  • All of the above

If ILA was more available to their clients on an unbundled basis, 80% of respondents said that their clients would be likely or very likely to seek and obtain ILA.

The Gap

Mediators are one of the key groups of “intermediaries” working with families experiencing separation and divorce. Mediators to this survey confirmed their frustration when they are unable to refer their clients to accessible and affordable legal services to support their mediation experience. There is a gap here which is part of the larger gap experienced every day by self-represented litigants. They need legal advice; they know they need legal advice; they can’t afford legal advice in the traditional sense. This gap is what the Mediate BC Family Unbundled Legal Services Project and the Access to Justice BC Unbundling Initiative are trying to address. We need to encourage BC family lawyers to offer and promote unbundled legal services.
We need to encourage BC family lawyers to offer and promote unbundled legal services. Click To Tweet

Suggestions for Improvement

Many respondents identified a need for a roster of private unbundled lawyers.  One respondent noted:

FJCs cannot refer to specific lawyers so I suggest they shop around for lawyers who have flexible fees, but we could refer to a roster of lawyers who provide unbundled services. I would refer often if that existed.

One of the goals of this project is to create a public-facing list of these lawyers (with key information including fee arrangements) to make them more accessible to the public, to the mediation community and to other intermediaries.

Other suggestions included:

  • Expand free legal services for property and spousal support issues
  • More information and promotion about unbundling
  • Increased legal aid funding for family disputes
  • To remove or increase financial eligibility requirements for LSS legal advice/coaching when referred by a mediator

One respondent raised an important point about unbundled services to support the mediation process:

The struggle I have with the unbundled services are that there are some lawyers that are supportive and very helpful to the mediation process and some lawyers are not helpful. A lawyer’s philosophy, knowledge and attitude towards ADR is key. 

The project is exploring the best way to provide some information as part of the list that will assist family members and mediators to choose the unbundled lawyer that best meets the needs of the parties and the situation.

Closing Comments

This is the closing post in this series. You can access all six posts in this series, and other interesting posts, on the Mediate BC Blog.

Information about the BC Family Unbundled Legal Services project can be found here. Summaries of the responses to all three surveys are posted on that page.

Mediate BC is enormously grateful to the lawyers, mediators and members of the public who participated in these surveys – thank you!  The information was really helpful. Stay tuned for more information.

Note 1:  The 2014/15 Annual Report for the Provincial Court of BC reports a 41% self-representation rate in family matters.  A self-represented appearance is defined as one at which at least one party is not represented by counsel or agent.

Note 2:  Statistics for the BC Supreme Court are more difficult to find.  Justice Victoria Gray’s 2013 study (“Filling in the Blanks: Towards a More Inquisitorial Process (with Relevant and Organized Evidence) – Summary of a Study Regarding the Law of Evidence and Self-Represented Family and Civil Litigants in the B.C. Supreme Court”) states that, with respect to BC Supreme Court trials, “Between one-third and one-half of all family Trials involved at least one SRL.”

Kari D. Boyle Receives 2016 Susanna Jani Award for Excellence in Mediation

Thanksgiving in Canada centres around the harvest and is in many ways a celebration of abundance. We’re fortunate to have abundance in food, which many of us enjoyed with friends and family this weekend. In the Mediate BC family, we’re blessed with abundance in those working to advance mediation in new ways and to best serve the needs of the public.

Kari D. Boyle receives the 2016 Susanna Jani Award for Excellence in Mediation from Brian Gibbard and Monique Steensma.This past month we had the honour of presenting Kari D. Boyle with the 2016 Susanna Jani Award for Excellence in Mediation at Mediate BC’s Vancouver Reception on September 16th. Many of you will know Kari from her writing on this blog or on Slaw, as the Coordinator of the BC Family Justice Innovation Lab, committee member for Access to Justice BC, or her many leadership roles with Mediate BC (former Executive Director, former Director of Strategic Initiatives, Unbundled Family Legal Service Project Manager, etc.). Kari has been an indefatigable supporter of mediation and access to justice in BC.

Long-time Mediate BC board member Jane Morley, QC was unable to attend the reception, and provided the following message to Kari to be shared with all in attendance:

Kari, I wish I could be there to celebrate you as you receive the Susanna Jani award. I cannot think of anyone who more deserves this recognition. Your contribution to mediation in BC has been long-term and amazing, and I know (because I have the privilege and delight of continuing to work closely with you), it is continuing.

I first knew you by reputation – as a highly competent, intelligent and committed Executive Director of the Dispute Resolution Practicum Society. During the short time I was on that Board, I observed for myself that this reputation was well-founded. However, it was when you and I worked together on the merging of the Practicum Society and the Roster Society that I really began to understand the depth of your strength and capacity. It was then that our friendship developed, and we became partners in various interesting endeavours that, whether successful or not, have always been learning experiences for both of us. It has been onwards and upwards ever since.

Whether it was developing a transformative scenario planning exercise for the Mediate BC Board or declaring the start of the Family Justice Social (now Innovation) Lab or watching you adapt user-design approaches to BC, again and again I have seen you demonstrate your competence, intelligence and commitment to mediation and serving the public. I have developed a growing admiration of your capacity to stick to your deeply rooted principles, while demonstrating an inquiring and open mind. To be able to be both dogged and flexible simultaneously is the mark of a very special person. And you are a very special person!

This award appropriately marks the end of one chapter of your story – being the founding Executive Director of Mediate BC and its predecessor the Practicum/Innovation Society. You are leaving an organization that is respected widely by those who consider it “their” organization and by leaders of stakeholder organizations across the justice system. The strength of Mediate BC is, in no small measure, a reflection of your strength.

Being a recipient of the Susanna Jani award is an affirmation of the high regard in which the mediation community holds you. For my part, I feel privileged to have worked with you in this chapter that is closing. I am delighted at the prospect of working with you even more intensely in your next chapter as leader of the BC justice system’s first innovation lab. I know that in this new chapter, you will continue to champion mediation, and work to expand its use, and the application of its underlying principle of self-determination, to the entire family justice system in BC.

In absentia, I ask everyone present to raise their glasses and give a toast  – to Kari!

About the Susanna Jani Award for Excellence in Mediation

The Susanna Jani Award for Excellence in Mediation, established in 2009is an annual award acknowledging a person who has made a significant contribution to the field of mediation in BC. Previous recipients include Ron Tucker, Gordon Sloan, Sharon Sutherland, Peggy English, Lee Turnbull, Carole McKnight, Sally Campbell, M. Jerry McHale, QC, and Joyce W. Bradley, QC.